TMEP 807.09: “Drawing” of Sound, Scent, or Non-Visual Mark

This is the October 2015 Edition of the TMEP

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807.09    “Drawing” of Sound, Scent, or Non-Visual Mark

37 C.F.R. §2.52(e) Sound, scent, and non-visual marks.

An applicant is not required to submit a drawing if the mark consists only of a sound, a scent, or other completely non-visual matter. For these types of marks, the applicant must submit a detailed description of the mark.

The applicant is not required to submit a drawing if the mark consists solely of a sound (e.g., music or words and music), a scent, or other completely non-visual matter. In a paper application, the applicant should clearly indicate in the application that the mark is a “NON-VISUAL MARK.” If the applicant is submitting a TEAS application for a sound mark, the applicant should select “Sound Mark” as the mark type. If the applicant is submitting a TEAS application for a scent mark, the applicant should indicate that the mark type is “Standard Character” and should type “Scent Mark” in the “Standard Character” field. The USPTO will enter the proper mark drawing code when the application is processed. Non-visual marks are coded under mark drawing code 6 in the automated search system. See TMEP §807.18 regarding mark drawing codes.

If the applicant selects “Sound Mark” as the mark type, the applicant will be required to indicate whether it is attaching an audio file. The applicant should submit an audio reproduction of any sound mark. See 37 C.F.R. §2.61(b). The purpose of this reproduction is to supplement and clarify the description of the mark. The reproduction should contain only the mark itself; it is not meant to be a specimen. The reproduction must be in an electronic file in.wav,.wmv,.wma,.mp3,.mpg, or.avi format and should not exceed 5 MB in size because TEAS cannot accommodate larger files.

Audio files can only be attached to TEAS application forms. To submit an electronic file in connection with any other TEAS form (e.g., Response to Office Action or Statement of Use/Amendment to Allege Use), the file must be sent after the TEAS document is transmitted, as an attachment to an e-mail message directed to TEAS@uspto.gov, with clear instructions that the electronic file should be associated with “the application filed under Serial No. <specify>.” See In re Powermat Inc., 105 USPQ2d 1789, 1791 (TTAB 2013). Note, however, that audio files attached to an e-mail currently cannot exceed 9 MB.

For paper filings, reproductions of sound marks must be submitted on compact discs (“CDs”), digital video discs (“DVDs”), videotapes, or audiotapes. See id. The applicant should clearly and explicitly indicate that the reproduction of the mark contained on the disc or tape is meant to supplement the mark description and that it should be placed in the paper file jacket and not be discarded.

If the mark is a composite comprising both visual and non-visual matter, the applicant must submit a drawing depicting the visual matter, and include a description of the non-visual matter in the “Description of the Mark” field.

The applicant must also submit a detailed description of the mark for all non-visual marks. 37 C.F.R. §2.52(e). If the mark comprises music or words set to music, the applicant should generally submit the musical score sheet music to supplement or clarify the description of the mark. See 37 C.F.R. §2.61(b). In a TEAS application or response, the musical score sheet music should be attached as a.jpeg or.pdf file in the “Additional Statements” section of the form, under “Miscellaneous Statements.”

See TMEP §§904.03(f) and 1202.15 regarding specimens for sound marks, and TMEP §904.03(m) regarding specimens for scent and flavor marks.